#### James A. FERGUSON v. STATE of Arkansas

CR 99-999

26 S.W.3d 787

Supreme Court of Arkansas

Opinion delivered October 5, 2000

Hampton, Larkowski & Benca, by: Patrick J. Benca, for appellant.

Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.

Per Curiam.

Appellee, State of Arkansas, filed the instant motion urging this court to reconsider our order granting appellant’s motion for oral argument. In support of its position, the State contends that we granted appellant’s request without the benefit of the State’s response and prior to the time that such response was due. Further, the State claims that Ark. R. Sup. Ct. 5-1 (a) (2000), prohibits oral argument in this case. Rule 5-1 (a) provides, in part, that “[a]ny party may request oral argument by filing, contemporaneously with that party’s hriej, a letter, separate from the brief, stating the request with a copy to all parties.” (Emphasis added.) The State’s interpretation of the rule is that a party’s request must accompany their initial appellate brief.

In response, appellant notes that the language of Rule 5-1(a) does not include such a limitation nor does this construction make sense. For example, an appellee may raise an argument in its reply brief that would influence an appellant’s determination of whether an oral argument would “significantly aid the decision-making process.” See Ark. R. Sup. Ct. 5-1 (a)(3). We agree. Here, appellant timely filed his request for oral argument contemporane*274ously with his reply brief.1 Accordingly, we deny the State’s motion to reconsider our order granting oral argument.

1

Appellant also argues that his request for oral argument would be timely if made within ten days of the last brief being due with the Court. We reject this interpretation of Rule 5-l(a). The request must be made contemporaneously with the brief.